1 CRA No. 2134 of 2023 2025:CGHC:28849-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment Reserved on 23/06/2025 Judgement Delivered on 30/06/2025 CRA No. 2134 of 2023 1 - Rahul Sahu S/o Shri Ramkumar Sahu Aged About 18 Years R/o Jamkuhi (Bachera), Police Station And District Mungeli, Chhattisgarh. 2 - Sesh Kumar @ Sajan S/o Shri Dinesh Sahu Aged About 18 Years R/o Jamkuhi (Bachera), Police Station And District- Mungeli, Chhattisgarh. Appellants versus State Of Chhattisgarh Through Station House Officer, Police Station Nawagarh, District- Bemetara, Chhattisgarh. Respondent(s) (Cause-title taken from the Case Information System) For Appellant(s) : Mr. Uttam Pandey, Mr. R.R. Dwivedi and Ms. Pooja Sinha, Advocates For Respondent(s) : Mr. Shangarsh Pandey, Dy. GA Hon’ble Shri Ramesh Sinha, Chief Justice Hon’ble Shri Bibhu Datta Guru, Judge CAV JUDGMENT Per, Bibhu Datta Guru, Judge 1. This criminal appeal preferred under Section 374(2) of the Cr.P.C is against impugned judgment of conviction and order of sentence dated 06/10/2023 passed in Sessions Trial No. 08/2023 by the learned I RAHUL JHA Digitally signed by RAHUL JHA Date: 2025.06.30 17:47:47 +0530 2 CRA No. 2134 of 2023 Additional Sessions Judge, Bemetara (C.G.), whereby the appellants have been convicted and sentenced as under:- Conviction Sentence U/s 120 (b) of the IPC Rigorous imprisonment for 10 years along with fine of Rs. 1000/- with default stipulation U/s 302/34 of the IPC Imprisonment for life with fine of Rs. 1000/- with default stipulation U/s 201/34 of the IPC Imprisonment for 3 years with fine of Rs. 500/- with default stipulation. In the crime in question three accused persons were involved and out of which one is juvenile and the trial in his respect has been separated. 2. Case of the prosecution in brief is that on 14/12/2022, PW5- Munnalal Diwakar, Kotwar of the Village (henceforth ‘the Complainant’) has lodged a zero number Merg in respect of dead body of one unknown person inter-alia that on the said day, when he woke up and sprinkling the water in the field, at about 7:00 am, one Suraj Dhruw came to him and told that one dead body is lying near Moharangiya Nala near Shamsham Ghat. Subsequently, he rushed to the spot and saw that the body of an unknown person was lying. The head part of the said body was in a raised condition inside the water on the bank of the drain, and there was a lot of blood on the head of the said body and the said deceased was wearing a catechu colored flower jacket and black colored jeans pant and blue colored sports shoes on both feet. The grass on the bank of the drain near his body is stained with blood for some distance and a lot of blood is spread at a distance of about 50-55 feet from the 3 CRA No. 2134 of 2023 dead body and a piece of cement concrete stone stained with blood is lying nearby. During the investigation, it was revealed that one Ramanand, the Child in conflict with law (henceforth ‘CCL’) along with the present appellants, after hatching the conspiracy, took the deceased to the place of occurrence and thereafter they committed murder of the Deceased. On the basis of the above information of the Complainant, inquest intimation was registered at zero and after preparing the Panchnama of the dead body, his body was sent to Community Health Center, Navagarh for dissection. Subsequently, by registering inquest number 49/2022 against the accused in Navagarh police station, crime number 296/2022 was duly registered 3. After completion of investigation in the case, a charge sheet was filed before the concerned court. After framing the charges against the accused/appellants, the charges were read out and explained to the appellants, they denied committing the crime and demanded trial. In order to bring home the offence, the prosecution has examined 55 witnesses in its support. Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein they have pleaded their innocence and false implication in the matter. 4. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 06/10/2023 convicted and sentenced the appellants as mentioned in paragraph one of this judgment. 4 CRA No. 2134 of 2023 5. (a) Mr. Uttam Pandey, learned counsel for the appellants submits that the appellants have been falsely implicated in the present case. He would submit that the prosecution has failed to prove the chain of circumstances pointing the guilt towards the appellants. According to the learned counsel, the recovery witnesses namely PW10- Tikaram Sahu, PW-11- Dinesh Kumar Sahu, who are the relatives of the deceased, have not established the fact regarding memorandum and consequent recovery. Learned counsel would submit that no mobile was recovered from the possession of the Appellant No.1 – Rahul Sahu (henceforth ‘A1’) and likewise, nothing recovered from the possession of Appellant No.2- Sesh Kumar @ Sajan (henceforth’ A2’). (b) Learned counsel would submit that the voice record taken by the prosecution has no evidentiary value as for collecting the said voice sample, no permission of Judicial Magistrate has taken and as such, the same cannot be taken into consideration for convicting the appellants. He would submit that even if the case of the prosecution is taken as it is, no offence is made out against the accused as there is no iota of evidence to connect the accused persons with the crime in question. (c) By referring the para 13 of evidence of Mohit Chelak (PW41) who is a Head Constable and posted in Cyber Cell, Bemetara, learned counsel would submit that he, only on the instruction of the higher officials of the Police Department, has taken voice sample of the accused and he has no knowledge that before recording the voice sample, prior permission of the Judicial Magistrate is required. Even, the Investigating Officer- 5 CRA No. 2134 of 2023 Ajay Kumar Sinha (PW51) at para 57 of his statement has deposed that before taking the voice sample of the accused, he has not taken the prior permission of the Magistrate. He only stated that after obtaining the consent of the accused, he has recorded their voice sample. In support of his contention, learned counsel would place reliance upon the decision renderred by the Supreme Court in the matters of Ritesh Sinha v. State of Uttar Pradesh & Another, (2019) 8 SCC 1 and Pravinsinh Nrupatsinh Chauhan v. State of Gujarat, (2023) 4 CGLJ 40 and would submit that the power to record voice sample can only be given by a Magistrate, whereas, in the case in hand, the Investigating Officer has recorded the voice sample of the accused/appellants, therefore, the entire case of the prosecution is vitiated. (d) Learned counsel would submit that the mobile Sims, which are seized from the possession of the appellants, were not registered in their names. Whereas, the Sims were issued in the name of Uncle and Father of the appellants, respectively. Thus, the impugned judgment of conviction and order of sentence is bad in law and deserves to be set- aside. 6. Learned counsel for the State would oppose the arguments advanced by the learned counsel for the appellants and submits that the conviction of the appellants is well merited which does not call for any interference. He would submit that the prosecution has discharged its burden of proving beyond reasonable doubts that the appellants committed the offence punishable under Section 302 of the IPC. He would submit that 6 CRA No. 2134 of 2023 the minor discrepancies in the statements of the witnesses have not effect on the prosecution case and that the involvement of the appellants in the crime in question has been duly corroborated. Therefore, this appeal deserves to be dismissed. 7. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. 8. Admittedly, there is no eye-witnesses to the incident and the case of the prosecution is based on circumstantial evidence and memorandum statement of the appellants. 9. The nature of evidence and degree of proof required to sustain the conviction on the basis of circumstantial evidence has been dealt by the Supreme Court in the matter of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in AIR 1984 SC 1622, wherein the Supreme Court has underlined the conditions, which must be fulfilled for convicting the accused on the basis of circumstantial evidence and held in para-152 as under: “152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the 7 CRA No. 2134 of 2023 circumstances concerned ‘must or should’ and not ‘may be’ established. There is not only a grammatical but a legal distinction between ‘may be proved’ and ‘must be or should be proved’ as was held by this Court in Shivaji Sahebrao Bobade Vs. State of Maharashtra, (1973) 2 1 AIR 1984 SC 1622 SCC 793 : (AIR 1973 SC 2622) where the following observations were made: “certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between ‘may be’ and must be’ is long and divides vague conjectures from sure conclusions.” (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 10. Dr. Roshan Sahu (PW27) has conducted the postmortem of the Deceased. The Postmortem report in this case is Ex.P/57. There were 8 CRA No. 2134 of 2023 following injuries on the body of the deceased:- “1. There was a depression (elepreseci) on the right side of the skull of the deceased, the size of which was 5 x 4 x 1 cm. 2. There was a lacerated would in the frontal region of the right side of the forehead of the deceased, the size of which was 3 x 2 x 2 cm. 3. There was a lacerated would above both the eyes of the said deceased, the size of which was 2 x 1 x 1 cm and due to the sinking of the eye bone, it was fractured. 4. There was a lacerated wound above the eyebrow of the right eye of the said deceased, the size of which was 2 x 2 x 1 cm. 5. Due to the injury in the nose of the deceased, its shape had changed. 6. There was swelling and contusion in the right cheek of the deceased, size 5 x 5 cm. 7. There was an incised wound in the middle, upper and lower lip of the deceased, the size of which was 1 x 1 cm. 8. The skin on the right side of the skull of the deceased was torn from the lateral part of the right eye to the lateral suture part of the skull. 9. There was an incised wound in the left eyebrow of the deceased, the size of which was 1 x 1 x 2 cm and on the left 9 CRA No. 2134 of 2023 side there was a lacerated wound, the size of which was 10 x 2 x 1 cm. Due to the injury in his neck, his thyroid cartilage was clearly visible and there was a fracture in his right maxillary and mandible bone and his upper and lower canine and incisor teeth were dislocated. The injuries inflicted on the deceased were of antemortem nature. The right side of the skull of the above deceased had a large number of small fractures (compound fractures) in the bones and the bone had broken and got embedded in his brain. The ribs of the deceased were visible, the lungs were congested and there was a fracture in the thyroid cartilage, the lungs were congested and the heart was empty. There was a black colored food substance present in the stomach of the above deceased, which looked like meat and there was an odor of alcohol coming from his stomach and the urinary bladder of the above deceased was empty. In the opinion of the doctor the death of the deceased was due to Hemorhagic Shock & Hypoxia simultaneously which was caused by the serious injury to the right skull and face of the said prior to his death and the fracture in his hyoid cartilage. The nature of death was "homicidal". 11. From the above evidence of Doctor, it is quite vivid that the death of the Deceased was homicidal in nature. Hence, the finding of the Trial Court 10 CRA No. 2134 of 2023 that the death of the deceased was homicidal, is affirmed. 12. Father of the Deceased Sukhiram Sahu (PW1) in his Court’s statement has deposed that on the date of incident, the Child in conflict with law (henceforth ‘CCL’) called the Deceased to go to attend Chhathi program and took him along on his motorcycle. The deceased on the said day was wearing black shoes, brown coat, black shirt and black jeans. When the deceased did not return home till late night. Subsequently, when the Deceased was called over phone, his mobile was switched off. The deceased was searched in the villages as well as to the relative, but he was not traced. On the next day, the police official came to his house and asked about the Deceased on which, he replied that the Deceased had gone along with CCL. 13. Mother of the Deceased namely Sunita Sahu (PW6) has corroborated the above statement of Sukhiram Sahu (PW1). She in similar way has stated that on the date of incident, the Deceased had gone along with the CCL, however, he did not return and subsequently, the Deceased was found dead. 14. Mohardas Diwakar (PW3) in his Court statement has stated that on the date of incident, he was informed by the villagers that near Moharangiya Drainage, one dead body of the unknown person has been found. He reached to the spot and saw the dead body. Subsequently, the report was lodged. He admitted that there was a stabbed wound on chest and neck and nearby a concrete blood stained stone was lying, by which, perhaps the head of the Deceased was assaulted. 11 CRA No. 2134 of 2023 15. The Supreme Court in the matter of Shyamal Ghosh v. State of W.B., (2012) 7 SCC 646 has held as under;- 50. Then, it is also contended and of course with some vehemence that where the prosecution is relying upon the last seen theory, it must essentially establish the time when the accused and deceased were last seen together as well as the time of the death of the deceased. If these two aspects are not established, the very application of the “last seen theory” would be impermissible and would create a major dent in the case of the prosecution. 51. Application of the “last seen theory” requires a possible link between the time when the person was last seen alive and the fact of the death of the deceased coming to light. There should be a reasonable proximity of time between these two events. This proposition of law does not admit of much excuse but what has to be seen is that this principle is to be applied depending upon the facts and circumstances of a given case. This Court in para 21 of Yusuf case [(2011) 11 SCC 754 : (2011) 3 SCC (Cri) 620] while referring to Mohd. Azad v. State of W.B. [(2008) 15 SCC 449 : (2009) 3 SCC (Cri) 1082] and State v. Mahender Singh Dahiya [(2011), held as under:- “21. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other 12 CRA No. 2134 of 2023 than the accused being the author of the crime becomes impossible. (Vide Mohd. Azad v. State of W.B and State v. Mahender Singh Dahiya)” 52. The reasonableness of the time gap is, therefore, of some significance. If the time gap is very large, then it is not only difficult but may even not be proper for the court to infer that the accused had been last seen alive with the deceased and the former, thus, was responsible for commission of the offence. The purpose of applying these principles, while keeping the time factor in mind, is to enable the court to examine that where the time of last seen together and the time when the deceased was found dead is short, it inevitably leads to the inference that the accused person was responsible for commission of the crime and the onus was on him to explain how the death occurred. 16. Thus, from perusal of the above statements of these witnesses clearly shows that on the date of incident, the Deceased had gone along with CCL for attending the Chhathi program and subsequently, he was found dead near Moharangiya Drainage having sustained knife injury and head injury. The deceased was last seen in the company of the CCL. 17. The prosecution has brought on the statement of one Kanak Nishad @ Sadhna, who has been examined as PW24. She in her statement has deposed that while she was residing at Raipur, one warrant in respect of her husband was summoned and subsequently, her husband was taken into custody. She stated that she used to earn bread and butter while her 13 CRA No. 2134 of 2023 husband was in jail and used to run Instagram. She knows the CCL from school. He used to tease girls while studying in school and as also to her, due to which her brother had a scuffle with him." This witness further alleged that "Village Chikhaldah and Ramanand's village Dindori are adjacent to each other and the CCL used to visit her village often. While her husband was in jail, he used to harass her by calling on her mobile phone and was after her since then. She deposed that she did not know Anand (the Deceased) of village Gigatra. When her husband was in jail, the CCL used to call her and say that he will marry her. This witness further deposed that after her husband was released from jail, the CCL came to our house at Raipur to meet her once. Though she could not recognize him properly, so she did not tell her husband. After a few days, the CCL started threatening her husband on his mobile, then she told her husband about him" This witness further alleged that "On 14.12.2022, she came to know through Police Station Bemetara that a person has been murdered in Navagarh police station area where a pamphlet in the name of her husband has been thrown and her photo was found at the spot, the photo found at the spot was exactly the same photo as the photo she had put on her Instagram." 18. Mahesh Nishad (PW24), husband of Kanak Nishad (PW23) in his Court’s statement has deposed that the CCL along with accused Rahul Sahu came to his house at Raipur 15-20 days before the incident." This witness has further alleged that the CCL, A1 and one or two other persons used to call him on his mobile and asked him to leave Kanak 14 CRA No. 2134 of 2023 Nishad as she was not a good girl. The CCL came to his house and took his mobile number. Subsequently, after a week of that he called him over mobile showing him as Malikram and told that he wants to kill Anand Sahu, so arrange for a pistol etc., on which he told him, he has come at Raipur to earn bread and butter and he cannot arrange for all. He was asking him over the phone to come. This witness has further alleged that “the day when the CCL and A1 came to his house at Raipur, they told him to come village Chikhaldaha and said that we will drink alcohol and will kill Ramanand there. 19. Memorandum Statement of Ramanand (the CCL) is Ex.P/14. As per the memorandum statement, the CCL along with the appellants after hatching the conspiracy, took the deceased to the place of occurrence, where they committed murder of the Deceased. 20. Similarly, Rahul (A1) in his memorandum statement (Ex.P/15) has stated that A2 who is his childhood friend asked him to help to commit murder of the Deceased and subsequently, they committed murder of the Deceased. 21. Sheshkumar (A2) in his memorandum statement (Ex.P/16) has admitted the fact to commit the murder of the deceased. He also stated that he was having a Oppo Company Mobile Phone, which were having auto call recording facility and the voice recording of the talk of the A1 and the CCL has been saved in his phone. One mobile phone of Realme company containing JIO company Sim, mobile. no. 9617347946; and the knife which was used in murder of the Deceased; one mobile phone 15 CRA No. 2134 of 2023 of Tecno Spark company; Projector papers etc., were seized from the appellants. 22. Tikaram Sahu (PW10) and Dinesh Kumar (PW11) are the witnesses of Memorandum and Seizure. 23. Tikaram Sahu (PW10) in his Court’s statement has deposed that at paragraph 3 that he had gone to Dindora village along with the police officers, where the CCL had told the police officers that he had hidden the clothes, shoes and other belongings in his house, which were worn by them at the time of incident. 24. Dinesh Kumar Sahu (PW-11) has alleged in the second line of paragraph 3 of his statement that “the police had taken a memorandum statement of accused Rahul Sahu who had told the police officer that the CCL had called him then he went to Navagarh, where the CCL, Ramanand Sahu has murdered the deceased. Similarly, the CCL while giving the memorandum statement had told that he had not murdered the deceased but A1, Rahul Sahu had murdered the deceased.” This witness has further alleged in the third line of paragraph 4 of his statement that 'he and Tikaram Sahu (PW10) had gone to village Dindori along with the police personnel where from the instance of CCL and A1 clothes, shoes, project paper, mobile and motorcycle used at the time of the incident were seized. This witness has further alleged in the same line of his statement at Paragraph 5, that "he and Tikaram (PW10) had gone to the house of accused Rahul Sahu along with the police, where at the instance of the A1, clothes and other items were seized by the police." 16 CRA No. 2134 of 2023 25. Dinesh Kumar Sahu (PW-11) has also stated in the second line of Paragraph 06 of his statement that "the CCL while giving his statement to the police in front of him, had told that the knife by which he had killed the deceased was thrown in Mohrangia Nala. This witness has further alleged that "the CCL had told the police in front of him that he has hidden the clothes, shoes, mobile and Project papers which he was wearing at the time of the incident in his house." Further, this witness has made a clear statement that "While giving memorandum statement to the police, A1 had told the police that he has hidden the clothes, shoes and mobile phone of deceased Anand in his house which he was wearing at the time of the incident and he will made recover them." 26. Bare perusal of the statement of these witnesses clearly states that the above witnesses of the Memorandum and Seizure, has supported the case of the prosecution. 27. The FSL report in the instant case is Ex.P/164. According to the report, following articles have been sent for examination:- “1.Packet 'A':- Brown soil was found in it, which is written to be blood-soaked soil seized from the crime scene on 14.12.2022. It was marked as Exhibit 'A' for testing in the laboratory. 2. Packet 'B':- Brown soil was found in it, which is written to be plain soil seized from the crime scene on 14.12.2022. It was marked as Exhibit 'B' for testing in the laboratory. 3. Packet 'C': Brown soil was found in it, which is written to be 17 CRA No. 2134 of 2023 blood-soaked soil seized from a distance of about 58 feet from the crime scene on 14.12.2022. It was marked as Exhibit 'C' for testing in the laboratory. 4. Packet 'D':- Brown soil was found in it, which is written to be plain soil seized from a distance of 58 feet from the crime scene on 14.12.2022. It was marked as Exhibit 'D' for testing in the laboratory. 5. Packet 'E':- It contained a pair of blue coloured shoes without laces along with socks, which had brown mud on them, which were said to be the shoes and socks worn on both feet of the deceased seized from the scene of crime on 14.12.2022. The shoes of the right and left feet were marked as exhibits 'Ea and E' respectively for laboratory testing. 6. Packet 'H:- A pair of black coloured shoes with laces were found in it, which were found to be the shoes worn by the child in conflict with law, Ramanand Sahu, on 15.12.2022, when he committed the crime. For laboratory testing, the shoes of the right and left feet were marked as Exhibit HR and Hr, respectively. 7. Packet T:- A pair of black coloured shoes with laces were found in it, which were found to be the shoes worn by the accused Rahul Sahu on 15.12.2022, when he committed the crime. For laboratory testing, the shoes of the right and left feet were marked as Exhibit TR and Il respectively. 18 CRA No. 2134 of 2023 Testing 1. The soil of exhibit A & C were kept in salt solution for 24 hours. Thereafter, they were washed repeatedly with clean water. 2. Soil was carefully collected from the shoes of Exhibit E (ER EL), Exhibit H (HR, HL) and Exhibit I (IR, IL) for testing. 3. Dissolved soil from Exhibit A and Exhibit C, soil collected from shoes of Exhibit E, H and I and soil of Exhibit C and soil from Exhibit B and D were placed separately in an oven and heated at 110 degree celcius for 1 hour. After cooling, soil samples were prepared for testing by sieving them through a 150 BSS sieve. 4. On comparative testing of soil of Exhibit A, B, C, D, E (ER EL)H (HR, HL) & I (IR, IL), at different points, the results obtained are as follows- S.no Observation Point Exhibit C Exhibit D Exhibits- A, B, E, H & I i Colour of Soil Brown Brown Brown ii Microscopic examination • Brown particles – More • Black particles- less • Semi transparent particles- very less • Brown particles – More • Black particles- less • Semi transparent particles- very less • Very small- Brown particles – More • Big- Black particles- less • Black particles- very less iii U.V. Fluorescence Short U.V Green Green Dark Green iv Long U.V Black Black Black iv Density Gradient When 20 mg of soil was put in density gradient tubes, the distribution of particles was found to be similar to that shown in Exhibit D. When 20 mg of soil was put in density gradient tubes, the distribution of particles was found to be similar to that shown in Exhibit C. When 20 mg of soil was put in density gradient tubes, the distribution of particles was found to be similar to that shown in Exhibit s A, B, E, H & I Photograph No.1 Photograph No.2 19 CRA No. 2134 of 2023 Opinion Based on the above test - The soil in Exhibit 'C' and Exhibit 'D' has the same physical properties. The soil in Exhibit 'A' and Exhibit 'B' and the soil in the shoes in Exhibits E (ER EL)H (HR, HL) & I (IR, IL)) have the same physical properties 28. Thus, the chain as upto in the present case appears to be complete in this way that “the death of the Deceased was homicidal in nature; the deceased was last seen in the company of the CCL; the Deceased was subsequently found dead; the Deceased was having affair with PW24, which the CCL used to not like; from the memorandum statements of the appellants, above mentioned articles were seized, which were used at the time of incident; from the memorandum statement of the CCL, it is clear that he after hatching the conspiracy with the A1 & A2, committed murder of the Deceased which has been supported by the prosecution witnesses namely Tikaram (PW10) and Dinesh Sahu (PW11). 29. The arguments as advanced by the counsel for the appellant that whether before taking the voice sample of the accused, the Investigating Officer has not taken the prior permission of the Magistrate is necessary in this case or not? 30. Ashutosh Dubey has been examined as PW19. He was called in the police station in-charge Navagarh after giving a notice under Section 160 20 CRA No. 2134 of 2023 of the Code of Criminal Procedure when the voice sample of the appellants were being taken. The police had taped the voice of the appellants in front of him in a Samsung mobile phone of a policeman and taken its voice sample and prepared two separate DVDs of the said voice sample. Panchnama was prepared in relation to the mobile in which the voice sample of the accused was recorded (Ex.P. 43). He further stated that voice samples of both the appellants were recorded in his presence. The DVD containing the voice samples was seized in his presence. 31. Mohit Chelak has been examined as PW41. He is Head Constable in Cyber Cell. He deposed that on 20.12.2022, a letter no. 143/2022 dated 20.12.2022 Ex.P./106 and authority letter Ex.P/107 to the Incharge Cyber Cell Bemetra, in crime number 296/2022 of Police Station Navagarh, from the Superintendent of Police, Bemetara, for preparing the voice recording available in the mobile phone seized from accused Sheshkumar alias Sajan in digital format/CD was received and it was directed to make it available to Navagarh Police Station. Upon receipt of this letter, he on the instructions of Incharge Officer Cyber Cell Bemetra, have put the voice recording available in the mobile phone seized from accused Sheshkumar alias Sajan in the audio folder inside the file of Oppo company mobile phone seized from accused Sheshkumar alias Sajan,. A total of 11 voice recordings saved were separately stored in blank CDs and given to the officer in charge of Cyber Cell Bemetara along with the certificate of section 65B of Evidence Act regarding the 21 CRA No. 2134 of 2023 truth and correctness of the above CDs. The certificate of section 65B of Evidence Act given by him in the above regard is Ex.P.108, whose parts A to A are my signatures and parts B to B have the seal of Cyber Cell Bemetara. On the same date 20.12.2022 at 23:15 hrs, the voice recording available in the mobile of accused Shesh Kumar Sahu alias Sajan Oppo company was saved in a blank CD in Cyber Cell Bemetara. Subsequently, the CDs were sealed. 32. Inspector Ajay Kumar Sinha has been examined as PW-51. He has alleged in the seventh line of paragraph 03 of his judicial statement that "It was came to his knowledge through the younger brother of the Deceased that the deceased was last seen with the CCL of village Dindore, he along with his staff reached village Dindori and took the CCL in custody from his house and questioned him, in which he told that, after the incident, he had given one of the mobile numbers which he was using to his acquaintance Ramdhun Sahu, besides this, he also told that Rahul Sahu (A1) has helped him in the murder of deceased Anand Sahu. This witness has also stated the first line of paragraph 4 of the said statement that “for the work of investigation, he left for village Jamkuhi along with his staff and took A1 in custody and interrogated him, in which he told that at the behest of his friend Shesh Kumar Sahu alias Sajan (A1), he had helped the CCL in the murder of deceased and also told that A2 was in Bilaspur.” This witness has further alleged in the sixth line of the same paragraph 4 of his statement that “taking accused Rahul along with him, he left for Bilaspur along with his staff and from 22 CRA No. 2134 of 2023 Bilaspur, after taking A2 in custody, he came back to Police Station Navagarh.” This witness has further alleged in paragraph 06 of his statement that he had taken the memorandum statement of the CCL, on 15.12.2022 and on the basis of his memorandum statement, the knife used in the incident was recovered from Mohrangiya Nala on the basis of the indication given in his memorandum statement. In paragraphs 8 and 9 of his court statement, while alleging that the memorandum statements of A2 & A1 were recorded in the presence of witnesses Tikaram Sahu (PW10) and Dinesh Sahu (PW11), has made a clear statement in the first line of paragraph 9 of his statement that "In the course of investigation, on the basis of the memorandum statements of the appellants, their mobile phones were seized. This witness further stated that the same was seized separately in the presence of witnesses; seizure memo prepared in this regard is Ex.P/19 and Ex.P/20." This witness further alleged in the first line of his statement in paragraph 13 that "A1 had told that the SIM card in the mobile of the Deceased was thrown somewhere on the Lormi-Jhajhpuri-Dashrangpur road, and when it was not found even after searching, search panchnama Ex.P.31 was prepared in this regard." 33. Ajay Kumar Sinha (PW-51) has clearly alleged in the first line of paragraph 14 of his statement that "In the course of investigation, when the CCL gave the SIM card of Idea company to Ramdhun, he gave notice of Section 91 of the Code of Criminal Procedure to Ramdhun for providing information." This witness further alleged in the fourth line of 23 CRA No. 2134 of 2023 paragraph 14 of his statement that that "On 15.12.2022, when Ramdhun Sahu presented the Oppo company's mobile, it was seized in front of witnesses and seizure sheet Ex.P/.25 was prepared." Supporting the above judicial statements of prosecution witness Ajay Kumar Sinha (PW51), prosecution witness Ramdhun Sahu (PW13) examined in the court has alleged in the third line of paragraph 01 of his statement that "the CCL told him that he have two SIMs, you take one SIM and said that return the SIM to him after two-three days of use." He clearly told the police that the SIM card of the said Vodafone-Idea company was given to him by the CCL, the police had seized the SIM card of Vodafone-Idea company and the mobile of Oppo A15S company from him." 34. Thus, the above statement of Ramdhun Sahu (PW13) examined in the court confirms the statement of prosecution witness Ajay Kumar Sinha (PW51) that he had seized the mobile phone of Oppo company on being presented by Ramdhun Sahu (PW13). 35. Ajay Kumar Sinha (PW51) has further alleged in the first line of para 17 of his statement that "On 20.12.2022, the voice recording available in the mobile of A2 was copied in digital format digital format/CD and made available through cyber cell. In this regard, a letter was sent to the Superintendent of Police." Further, this witness has also alleged in the fourth line of the same para 17 of his statement that "on 20.12.2022 at 23:15, after copying the call recording available in the mobile of A2 to a CD, the mobile was sealed and a sample seal panchnama was prepared 24 CRA No. 2134 of 2023 after being handed over by Mohit Chelak (PW41) posted in Cyber Cell Bemetara." 36. Ajay Kumar Sinha (PW51) has also made a clear statement that in the first line of para 18 of his statement that "on 20.12.2022 itself, a letter was sent to the in-charge Cyber Cell regarding providing technical assistance during taking voice samples of the accused." This witness has also alleged in the third line of this paragraph 18 of his statement that "On the basis of the recording available in the CD of voice recording available in the mobile of A2, the transcription of the conversation available in it was prepared by Cyber Cell Bemetara. This witness has further made a clear statement in the first line of paragraph 19 that "In the investigation on 21.12.2022, while taking the voice sample of the accused, on the need of independent witness, Ashutosh Dubey (PW19) and Purushottam Singh (PW17) were summoned by giving notice under Section 160 CrPC." Further, this witness has also alleged in the fourth line of this paragraph 19 of his statement that "On 21.12.2022, a Panchnama was prepared in front of the above witnesses regarding the absence of any recording in the mobile phone of constable Mahendra Verma in which voice sample collection was to be done." This witness further alleged in the first line of paragraph 20 of his statement that "before taking the voice sample of the appellants, the consent of witnesses Ashutosh Dubey (PW19) and Purushottam Sahu (PW17) and A1 & A2 were taken." 37. Ajay Kumar Sinha (PW-51) further states in paragraph 20 of his 25 CRA No. 2134 of 2023 statement that the voice sample of accused Rahul Sahu and accused Sheshkumar alias Sajan were recorded separately in the presence of witnesses Ashutosh Dubey (PW19) and Purushottam Sahu (PW17). The voice sample of the appellants which was saved in the mobile of constable Mahendra Verma was seized in front of witnesses on 21.12.2022 after Head Constable Mohit Ghelak of Cyber Cell Bemetara copied and provided it in separate DVDs." This witness has further alleged in the first line of para 26 of his statement that "In the work of investigation, on 28.02.2023, the memorandum was sent to State Forensic Science Laboratory Raipur vide Ex.P.81 for testing the voice sample of seized articles Q, N1, N2 and N3 and providing the report." This witness has further alleged in the third line of para 27 of his statement that "In the investigation of the case, information regarding mobile number 7067855530 was provided to Dinesh by giving mobile number 7067855530 to Sukhiram. "I had given notice under Section 91 of the CrPC to the accused, Mr. Rahul Sahu, regarding providing information regarding the accused, Mr. Rahul Sahu, and to the Director, Trends Shop, Mungeli, which were given as Ex.P.160, Ex.P.161 and Ex.P.165 respectively." This witness has also alleged in the first line of clause 30 of his judicial statement that "On 31.07.2023, the voice sample of the accused was sent to the State Forensic Science Laboratory, after receiving the report after testing it, he have attached it in the case." 38. Ajay Kumar Sinha (PW51) has stated that in the first line of para 31 of his statement that "In the voice analysis report of Ex.P. 168 from page 06 26 CRA No. 2134 of 2023 to half of page 12 of the report of state forensic science laboratory Raipur dated 31.07.2023, the voice report of accused Rahul Sahu has been found to be positive, whereas from page 12 to page 20 of the said analysis report, the voice report of accused Shesh Kumar alias Sajan has been found to be positive." This witness has further made a clear statement in the seventh line of this paragraph 31 of his statement that "A clear opinion has been given by the State Forensic Science Laboratory, Raipur that, during the investigation of the case, the voice samples taken from the accused were found to be of Rahul Sahu, Sheshkumar alias Sajan and Ramanand Sahu respectively." 39. Ashutosh Dubey (PW19) in his deposition has clearly stated that in front of him, the voice samples of A1 & A2 were tapped in a mobile phone of Samsung Company and the voice sample of the same was taken and two DVDs were prepared of it. He categorically admitted that voice samples of voice of the appellants were prepared in front of him and the DVDs of the same were sealed in his presence. 40. Mohit Chelak (PW41) has stated that a letter was received for preparing the voice recording available in the mobile phone seized from accused Sheshkumar alias Sajan in digital format/CD and it was directed to make it available to Navagarh Police Station. Upon receipt of this letter, he on the instructions of Incharge Officer Cyber Cell Bemetra, have put the voice recording available in the mobile phone seized from accused Sheshkumar alias Sajan in the audio folder inside the file of Oppo company mobile phone seized from accused Sheshkumar alias Sajan. A 27 CRA No. 2134 of 2023 total of 11 voice recordings saved were separately stored in blank CDs and given to the officer in charge of Cyber Cell Bemetara along with the certificate of section 65B of Evidence Act regarding the truth and correctness of the above CDs. This witness has stated that on 20/12/2022 at 23:15, the voice recording available in Oppo mobile phone of A2 was transferred. 41. On perusal of the above statement and evidence, it is apparent that the appellants have consented to give their voice samples and accordingly, their voice samples were taken and restored in the CDs in the presence of the witnesses, who have duly supported the case of the prosecution. Thus, the evidence produced by the prosecution proves the guilt of the appellants, who along with the CCL had committed the murder of the Deceased. Though, the permission from the Magistrate for obtaining the voice samples of the appellants was not obtained, but, looking to the chain of evidence adduced by the prosecution; gravity of offence and the evidence and also proving the fact regarding last seen, this Court does not find it appropriate to give the benefit of minor procedural defect to the appellants who, after hatching the conspiracy, brutally murdered the Deceased, when in the case the chain of evidence is complete. 42. The accused/appellants herein never challenged or questioned the procedure adopted for collection of voice sample, whereas, they have consented for the same. Even, in the statement recorded under Section 313 of the Cr.P.C., no such objection was raised to the consent given by them for the voice sample. 28 CRA No. 2134 of 2023 43. It is also the trite law that the obligation to put material evidence to the accused under Section 313 CrPC is upon the Court. One of the main objects of recording of a statement under this provision of CrPC is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. In the case at hand also, the appellant has not stated/objected to the charge levelled against them. (See: Vahitha v. State of Tamil Nadu, (2023) 11 SCC 338) 44. As far as the contention of the learned counsel for the appellants regarding the voice sample taken by the I.O., without any permission and directions from the competent court i.e. Magistrate as held by the Supreme Court in the cases of Ritesh Sinha (Supra) and Pravinsinh Nrupatsinh Chauhan (Supra), is concerned, it is not in dispute that the voice sample of the accused has been recorded by the Investigating Officer only after obtaining their consent. It is noteworthy to mention here that the said consent taken by the Investigating Officer has never controverted by the appellants in their 313 Cr.P.C examination, and even, it has not been averred that any prejudice has been caused to them in recording the voice sample by the Investigating Officer. 45. It is the trite law that procedural defects in investigation or trial do not automatically lead to the acquittal of an accused, especially if those defects do not cause a miscarriage of justice. The accused cannot claim acquittal solely on grounds of faulty investigation. The defective investigation does not automatically benefit the accused persons and 29 CRA No. 2134 of 2023 Courts will have to consider the rest of the evidence relied on by the prosecution. In the case at hand, the prosecution's case rested on circumstantial evidence, last seen as also the motive and as such the prosecution case cannot be discarded from any angle. 46. For a crime to be constituted, it is necessary to have an object, motive, intention and preparation for committing the crime. In this case, after examining the statements of the prosecution witnesses, it is crystal clear clear that the death of the deceased was caused by injuries inflicted on his head, neck, forehead, nose, face and mouth with sharp objects and hard and blunt objects before his death and there is evidence beyond reasonable doubt in this regard that both the appellants in this case, while talking on the phone with the CCL, hatched a criminal conspiracy and killed the deceased by assaulting him with a knife, brick and concrete stone, which makes it clear that the intention of the appellants was to kill the deceased. It is also crystal clear that the CCL was in a love affair with the prosecution witness Kanak Nishad alias Sadhna (PW-24) and the CCL used to call Kanak Nishad alias Sadhna and ask her for marriage. He had also gone to her house at Raipur to meet her. Evidence is also available on record regarding the fact that the CCL and A1 had gone to the house of Kanak Nishad alias Sadhna's house at Raipur and during the investigation of this case, the photograph of this witness and her husband and documents related to her were recovered from near the dead body of deceased and deceased also had a love affair with Kanak Nishad alias Sadhna (PW-24). That is why the CCL, by hatching a 30 CRA No. 2134 of 2023 criminal conspiracy on phone with the appellants in this case, has caused the murder of deceased which is the purpose and reason for the murder of deceased appellants. Apart from this, it is evident that the CCL had taken a knife, brick, stone, concrete and sleeping pills with them and they killed the deceased by assaulting him with knife, brick, stone and concrete. Before killing him the CCL talked to both the appellants on phone and made preparations to kill the deceased and after that he was killed. The CDR report available in the case and the voice analysis report taken for the appellants are mutually supported by each other. 47. From the perusal of such scientific evidences, not only it is clear that the appellants have hatched a criminal conspiracy to commit the murder of deceased, but they conspired to commit the murder by talking on mobile phone with the CCL and by killing the deceased and throwing him in Mohrangia Nala, the evidence of murder has been destroyed by throwing the weapon used in the murder, the knife, in the Nala. Thus it is clear that the prosecution has proved its case against the Appellants under Section 120B, 302 and 201 read with Section 34 of Indian Penal Code. Therefore, the Appellants have been rightly convicted by the Trial Court. 48. In view of the above, we are of the considered view that this Court finds that the trial Court has rightly hold the guilt of the appellants and has rightly passed the impugned judgment of conviction and order of sentence. Accordingly, the appeal is dismissed. 49. It is stated that the appellants are in jail, they shall serve out the remaining sentence. 31 CRA No. 2134 of 2023 50. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned forthwith for necessary information and compliance and also send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 51. Let a copy of this judgment and the original record be transmitted to the Trial Court concerned for necessary information and compliance. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Rahul/Gowri